16-3232 Lin v. Sessions BIA Hom, IJ A205 429 457 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 25th day of May, two thousand eighteen. 5 6 PRESENT: 7 RALPH K. WINTER, 8 RICHARD C. WESLEY, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 RUQING LIN, 14 Petitioner, 15 16 v. 16-3232 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Troy Nader Moslemi, Flushing, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Douglas E. 27 Ginsburg, Assistant Director; 1 Deitz P. Lefort, Trial Attorney, 2 Office of Immigration Litigation, 3 United States Department of 4 Justice, Washington, DC. 5 6 UPON DUE CONSIDERATION of this petition for review of a

7 Board of Immigration Appeals (“BIA”) decision, it is hereby

8 ORDERED, ADJUDGED, AND DECREED that the petition for review

9 is DISMISSED in part and DENIED in part.

10 Petitioner Ruqing Lin, a native and citizen of the

11 People’s Republic of China, seeks review of an August 25,

12 2016, decision of the BIA affirming a March 16, 2015, decision

13 of an Immigration Judge (“IJ”) denying Lin’s application for

14 asylum, withholding of removal, and relief under the

15 Convention Against Torture (“CAT”). In re Ruqing Lin, No. A

16 205 429 457 (B.I.A. Aug. 25, 2016), aff’g No. A 205 429 457

17 (Immig. Ct. N.Y. City Mar. 16, 2015). We assume the parties’

18 familiarity with the underlying facts and procedural history

19 in this case.

20 We have reviewed the IJ’s decision as modified by the

21 BIA. See Xue Hong Yang v. U.S. Dep’t of Justice,

520, 522 (2d Cir. 2005). The applicable standards of review

2 1 are well established. See

(b)(4)(B); Yanqin

2 Weng v. Holder,

(2d Cir. 2009).

3 I. Timeliness of the Asylum Application

4 An asylum applicant must demonstrate “by clear and

5 convincing evidence that the application has been filed

6 within 1 year after the date of the alien’s arrival in the

7 United States,” or must demonstrate “either the existence of

8 changed circumstances which materially affect the applicant’s

9 eligibility or extraordinary circumstances relating to the

10 delay in filing an application.”

(a)(2)(B),

11 (D). Our jurisdiction to review the agency’s finding that

12 an application was untimely is limited to “constitutional

13 claims or questions of law.”

§§ 1158(a)(3),

14 1252(a)(2)(D); Joaquin-Porras v. Gonzales,

, 177-

15 78 (2d Cir. 2006).

16 We dismiss the petition as to asylum for lack of

17 jurisdiction. Lin had to prove timeliness by clear and

18 convincing evidence.

(a)(2)(B). Her only

19 evidence other than her testimony was a letter from a witness

20 who did not appear and whose reliability was called into

3 1 question because of attorney fraud and documents that were

2 self-created or unsigned. The IJ has the authority to

3 determine the weight assigned to each piece of evidence, Xiao

4 Ji Chen v. U.S. Dep’t of Justice,

(2d Cir.

5 2006), and Lin does not identify any error of law in the IJ’s

6 conclusions, but merely challenges the IJ’s factual

7 determinations, which we lack jurisdiction to review. See

8 Joaquin-Porras,

.

9 II. Burden of Proof: Withholding of Removal and CAT

10 Relief

11 An applicant has the burden of proving eligibility for

12 relief.

(b)(1)(B)(i), 1231(b)(3)(C).

13 Although testimony alone may be enough in some circumstances,

14 an IJ “may weigh the credible testimony along with other

15 evidence of record.”

§ 1158(b)(1)(B)(ii). “We generally

16 defer to the agency’s evaluation of the weight to be afforded

17 an applicant’s documentary evidence.” Y.C. v. Holder, 741

, 332 (2d Cir. 2013). “Where the trier of fact

19 determines that the applicant should provide evidence that

20 corroborates otherwise credible testimony, such evidence must

4 1 be provided unless the applicant does not have the evidence

2 and cannot reasonably obtain the evidence.” 8 U.S.C.

3 § 1158(b)(1)(B)(ii); see Chuilu Liu v. Holder,

,

4 198 n.5 (2d Cir. 2009) (“[A] failure to corroborate can

5 suffice, without more, to support a finding that an alien has

6 not met [her] burden of proof.”). We cannot reverse the

7 agency’s corroboration finding unless a reasonable trier of

8 fact would be “compelled to conclude that such corroborating

9 evidence is unavailable.”

(b)(4).

10 We find no error in the agency’s conclusion that Lin did

11 not submit sufficiently reliable documentation to corroborate

12 her abortion claim. She argues that her credible testimony,

13 her medical booklet, a fine receipt, a letter from her former

14 employer, and the supporting statements from her mother and

15 aunt were sufficient by themselves to sustain her burden.

16 The agency reasonably gave little weight to the medical

17 booklet because it was a self-kept medical record lacking

18 indicia of reliability, such as any certification from a

19 doctor or hospital that the record was accurate. See Y.C.,

20 741 F.3d at 334. Additionally, the letters from Lin’s mother

5 1 and aunt were appropriately accorded little evidentiary value

2 because they were unsworn and written by interested witnesses

3 who were unavailable for cross-examination. Id. (deferring

4 to agency’s decision declining to credit letter from

5 applicant’s spouse); Matter of H-L-H- & Z-Y-Z-, 25 I. & N.

6 Dec. 209, 214-15 & n.5 (B.I.A. 2010) (according limited weight

7 to unauthenticated documents and to letters from friends and

8 family who are interested witnesses and who are not subject

9 to cross examination), abrogated on other grounds by Hui Lin

10 Huang v. Holder,

(2d Cir. 2012).

11 Similarly, the agency did not err in assigning little

12 weight to a fine receipt, which purportedly reflected a fine

13 for an illegal pregnancy, but did not reference an abortion.

14 Y.C., 741 F.3d at 334. Nor did the IJ err in affording little

15 evidentiary weight to an unsigned and unsworn letter,

16 purportedly from Lin’s former employer, informing her of her

17 termination from the company, which also did not refer to an

18 abortion. Id.; Matter of H-L-H- & Z-Y-Z-,

at 214-15. Finally, the IJ was permitted to rely on the fact

20 that Lin did not submit an affidavit from her former boyfriend

6 1 or present any evidence of their relationship. Chuilu Liu,

2

(“the alien bears the ultimate burden of

3 introducing such evidence without prompting from the IJ.”).

4 Accordingly, the agency reasonably concluded that Lin failed

5 to meet her burden of proof.1

(b)(1)(B)(ii).

6 Lin’s failure to meet her burden of proving past

7 persecution is dispositive because her asylum, withholding of

8 removal, and CAT claims all relied on the allegation of past

9 harm. See Paul v. Gonzales,

(2d Cir.

10 2006).

11 For the foregoing reasons, the petition for review is

12 DISMISSED in part and DENIED in part. As we have completed

13 our review, any stay of removal that the Court previously

14 granted in this petition is VACATED, and any pending motion

15 for a stay of removal in this petition is DISMISSED as moot.

16 Any pending request for oral argument in this petition is

1 The BIA did not rely on the IJ’s finding that Lin should have attempted to obtain an abortion certificate, so that determination is not before us. Xue Hong Yang, 426 F.3d at 522. Moreover, as the BIA found, such a certificate may actually undermine a claim of a forced abortion. See, e.g., Xiao Xing Ni v. Gonzales,

(2d Cir. 2007). 7 1 DENIED in accordance with Federal Rule of Appellate Procedure

2 34(a)(2), and Second Circuit Local Rule 34.1(b).

3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk of Court

8